|SC||Variations of sex characteristics|
|GR1||Legal gender recognition without self-determination|
|GR2||Legal gender recognition with self-determination (over 16)|
|GR3||Legal gender recognition with self-determination (under 16)|
|FPN||LGBTI focal points network|
|CA||Ministerial call to action|
The equality of all humans before the law is anchored in the Basic Law of the Federal Republic of Germany (1947, amended 2017). Article 3 addresses diverse characteristics and states that no person shall be favoured or disfavoured because of these characteristics. This article not only provides protection from any discriminatory behaviour by the state but also places a duty on the state to protect the equality of all individuals in regard to these characteristics. Although sexual orientation or sexual identity is not named as a characteristic, in the case of a transgender person, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) has ruled that the scope of protection the German state has to provide must be sufficient in cases where the characteristics are comparable to those expressly stated in the Basic Law. As a consequence, the German state has to provide sufficient protection from any unequal treatment an individual may experience due to the stated or similar characteristics. German legislation has to ensure equal treatment and to prevent discrimination to ensure that the provisions of the basic law are given full effect.
In 2006, the General Equal Treatment Act came into force. The Act forms the legal framework for the almost uniform protection against discrimination. The Act explicitly applies to sexand sexual orientationas cause for discrimination. The protection against discrimination on the basis of sex extends to women, men and trans people. The term sexual orientationis given a broad definition by the Act. It is connected to the way a person relates sexually to others. All sexual orientations have legal protection from discrimination under the Act. The Act treats bullying as a form of harassment, which is always prohibited, when the person affected is bullied because they possess one of the characteristics cited in the Act. However, the Act provides direct protection in the field of education only to the extent that private contracts are involved. For example, if discriminatory behaviour is exhibited at a private school, the Act´s protection applies directly. In the case of education in the state system, the constitutional law and the education legislation of the particular federal state applies (see Policies and action plans).
Based on the Act, the Federal Anti-Discrimination Agency (FADA) was founded. Tasks of the Agency are developing public relations in regard to discrimination, outlining of possible measures for the prevention of discrimination, implementing of scientific studies, submitting reports to the German Parliament at regular intervals of four years, and providing counselling for people who have experienced discrimination. Whereas the Act only provides protection if private contracts are involved, the Agency applies its competences in a much broader frame for the prevention from any discrimination based on the characteristics stated in the Act (see Policies and action plansfor measures taken).
German education law is governed by the particular provisions of each of the 16 federal states (Bundesländer). Each of the federal states has its own school law (Schulgesetz). As a consequence, the applicable provisions differ in each state. Provisions in regard to diversity and/or LGBTQI have only been included to some of these school laws. The school laws of Berlin (Section 2 School Law Berlin), Brandenburg (Section 4 para 4 School Law Brandenburg) and North Rhine-WestphaliaPalatinate (Section 1 para 1 School Law Rhineland Palatinate) contain provisions expressly referring to the right for education disregard the sexual identity of the person. The School Laws of Bremen (Section 5 School Law Bremen) and Saxony-Anhalt (Section 1 para. 1 School Law Saxony-Anhalt) further contain a general provision on the education of tolerance and non-discrimination. In Saarland, Art. 12 of the constitution ensures the freedom of sexual identity.
German school law is subject to the particular provisions of each federal state. However, within the framework of the federal “Live Democracy” program, measures are being promoted. These measures contribute promoting acceptance of same-sex and transgender lifestyles, to reducing prejudices against such groups, and to combating discrimination and violence based on gender, gender identity and sexual orientation.
There are also some action plans and anti-bullying strategies at the level of the federal states. The Ministry of Social Affairs in Schleswig-Holstein, for example, supports the implementation of education and anti-discrimination projects, especially on LGBTQI topics, which are also carried out in schools from lower secondary level (Schlau-Projekt). Two associations (Haki e. V. and lambda::nord e. V.) offer these projects and are also supported by the Ministry of Social Affairs of the State of Schleswig-Holstein to each provide counselling centres. Schools can request this educational offer from the clubs. The State of Brandenburg provides an anti-mobbing handout. In Brandenburg, an action plan was adopted in 2017 for the acceptance of gender and sexual diversity, for self-determination and against homo- and transphobia.
For its part,the Anti-Discrimination Agency is currently working on a detailed Guideline for the prevention of discrimination in a school context. However, the guideline has not yet been published. In 2014, the FADA published a study on the protection from discrimination in school settings. The 2012 dated study shows regulations and protections gaps in school and social law as well as recommendations for their further development. The study is available in German language only.
Finally, the federal program “Demokratie leben” supports organisations that fight for democracy within Germany, such as collecting data or tackling discrimination, within the context of education. Currently the federal program supports nine pilot projects that encourage the acceptance of same-sex lifestyles, reduce prejudice and hostility towards LGBTI people and address violence on grounds of sex or gender, gender identity and sexual orientation.
Education curricula do not systematically include content on sexual orientation, gender identity and expression, or variations in sex characteristics. Although some schools provide information in this regard, it is not compulsory in all 16 federal states.
In Lower Saxony and Berlin (and a few other federal states), the education curricula refer to the diversity of sexual identities in the preamble and provide LGBTQI related elements for specific school subjects.
In Saarland (state of the Federal Republic of Germany) there exists – supported by resources of the federal republic – a school-project. The LSVD-Saar (“Lesbian and Gay Federation in Germany”) deliver classes in school with gay and lesbian young people to talk about their sexuality with the students. The government also issued the Policy of sexual education in schools which contains a section on the diversity of sexual identity and orientation.
The framework curriculum 2017/2018 for Brandenburg explicitly stipulates on the interdisciplinary competence development (area: education for acceptance and diversity; area: gender mainstreaming as well as area: sexual education/education for sexual self-determination) as well as developing concrete guidelines for teachers in Brandenburg.
In general, further training on specific subjects is not mandatory for teachers. As a result, there is currently no mandatory teacher training on LGBTQI awareness on a federal level. Some regions, however, organise courses for teacher on a regular basis, in partnership with civil society organisations. In Brandenburg, for example, the project “Schule unterm Regenbogen” offers trainings for teachers on LGBTQI awareness.
The Law on the change of the first name and the determination of the sex in special cases Transsexual (amended in 2017) states that a person, with no age restriction, may ask for a gender marker change. Two independent expert opinions, however, are required under the law. These do not necessarily need to be psychological opinions or based on gender identity dysphoria diagnosis. The law states specific criteria under which two the experts have to write their recommendations: firm conviction that the person belongs to the other gender, having lived three years in that gender, and likeliness that it will not change in the future.
The German Constitutional Court stated that Civil Status Law must allow a third gender option in October 2017. For instance, the legislature could generally dispense with information on gender in civil status. Alternatively, it could also create the possibility for the persons concerned to choose another positive designation of a gender that is not male or female. It is also already possible for the parents of intersex children to leave the recognition of gender blank, so that it may be filled with male or female when the child is able to speak for themselves. It is also possible to subsequently change the gender entry.
The Federal Government registers crimes against the sexual orientation or gender identity of the victim and publishes the figures at regular intervals. There are also statistics on the federal state level. In Berlin, schools need to report bullying on grounds of sexual orientation or gender identity to the local school authority.
The Federal Ministry for Family Affairs, Senior Citizens, Women and Youth has driven the launch of a national pilot project Counselling skills in respect of rainbow families – Requirements and potentials with professional support which aims to provide counselling and assistance to the members of rainbow families.
Furthermore, there are several providers of counselling and support services at state and municipal level. The State of Berlin, for instance, states that all schools should designate a person responsible to provide sup-port to teachers and LGBTQI learners. In the senate department for education in Berlin there is a central ombudsperson for anti-discrimination.
This service is also provided by several NGOs in Germany. For instance, Jugendnetzwerk Lambda Berlin-Brandenburg, Queer Leben (Schwulenberatung) and Trans-Kinder-Netz all offer counselling free of charge. As part of a pilot project, the NGO Life e.V. provides counselling for learners or parents who have been discriminated in school. In Brandenburg the NGO, Landeskoordinierungsstelle für LesBiSchwule & Trans* Belange by Landesverband AndersArtiG offers counselling for youth, parents, teachers and social workers who either have been discriminated against in school or want to act against discrimination.
Finally, the counselling Service of the FADA offers a nationwide support service for persons affected by discrimination. It supports free of charge and also can assist in searching for a regional counselling or support service. A list of further regional support services can also be accessed on the FADA website. Regionally, the Berlin-based NGO Life e.V. provides counselling for learners or parents who have been discriminated in school free of charge. The organisation provides assistance via phone, e-mail or in their Berlin office.
To disseminate knowledge in the field of counselling, the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth funded the following publications. The flyers which translate as ‘Girl? – Boy? – Your transgender child‘ and ‘Female? – Male? – Your intersex child‘, both issued by the registered association Queer Leben e.V., aim at informing relatives of transgender and intersex children but also qualified medical and psychological staff and further occupational groups alike, such as birth attendants, educators and family counsellors, on where they can seek support and advice.
In addition, a guide for counselling centres on how to counsel intersex and transgender people and their relatives via pro familia’s Federal association was sponsored. The guide shows counsellors how to advise transgender and intersex people in a proficient and respectful manner. An online information platform, called ‘Wissensnetz‘ (knowledge network), on same-sex lifestyles and gender diversity is currently being established. Experienced experts, their relatives and third parties with a professional, technical or private interest, as well as the public, shall be supplied with appropriately analysed, structured and cross-linking information. The currently available counselling services are to be increased and made visible. The knowledge network shall help to balance the strong urban-rural gap in structures and, in so doing, increase equal opportunities in access to information and participation for these groups throughout Germany. However, there is also information and guidelines at state level. For example, the state of Berlin has published several materials as part of the local action plan for sexual and gender diversity.
The government provides support for LGBTQI youth led organisations in relation to education. However, as stated before, Germany is a federal state and, as such, the responsibility for education lies upon the 16 state governments. As part of the implementation of local action plans for sexual and gender diversity, the respective federal states may give grants to local organisations or conclude service contracts.
The state government of Lower Saxony, for instance, gives annual financial support to a civil society organisation named “SCHLAU” which serves as an umbrella organisation for providing queer educational services. In addition, 10 Lower Saxon municipalities support queer educational projects on a local level. For its part, the state government of Berlin financially supports civil society organisations like Bildungsinitiative QUEERFORMAT, Migrationsrat Berlin, Lesben- und Schwulenverband Berlin-Brandenburg, ABqueer, Jugendnetzwerk Lambda Berlin-Brandenburg to implement the local action plan by providing further trainings and educational materials for teachers and school workshops for students.
– Germany has signed the Call for Action by Ministers – Inclusive and equitable education for all learners in an environment free from discrimination and violence.
– Germany is member of the European Governmental LGBTI Focal Points Network.